BAIlBLINIl. CHICAGO, B·. & Q.
a.
CO.
401
HAMBLIN et
al.
t7. CHICAGO,
B. &. Q. R. Co.
(Circuit Court, N. D. nUnoiB. September 8,1890.) RDOVAL OJ' CAUSES-REJUNDING-DECISION OJ' FEDERAL QUESTION.
,
After overruling a motion to remand a cause, which had been removed from a state.to a federal court on the ground that a federal question· was involved, the fedei'Bl court sustained a demurrer to the special plea interposed by defendant, and thereby disposed of the only federal question presented for decision. Held, that a subsequent motion by plaintiff to remand the cause to the state court would be sustained under the' act of conjtress of March 8,1875, (section 5,) providing that if, in BUY'.utln:ommenced in or removed to a circuit court of the United States, it shall aJill"'l'r to the satisfaction of the court, "at any tiIlle" after such suit has been or removed thereto, that such cause does not Involve a dispute within its juris lotion, said court shall dismiss such suit. or· remand it to the court from wh1c it was removed.
I
At'Law. ;Motion to remand., '. . F. 'S.',)iwrjJ'hy and Prederick A. Willoughby, for plaintiffs. ere AUen, for defendant. _'0' -" . . . . . ·
J. The defendant charged and received from the plainlive-st9ck from Galesburg to Chicago, over the·defendin Illinois, a higher rate of freight than was authorized by the fixed by the. railroad and warehouse commissioners. The s:t.!ttute Fhich conferred upon the commissioners this authority was passed (2 Starr & C. St. and to recover the penalty foritsviola.tionjhis suit was commenced in the state court in March, 1882. The & Quincy Railroad Company was formed by the conSQlida,tion of the ·Branch Railroad Company, the Central Mil.itaryTragt Railway Company, the Peoria & Oquawka Railway Company" and.1;he Northern Cross Railway Company, all of which were incorporated a,nd consolidated prior to 1873. The general issue and a special plea were filed in the state court. The special plea set out the charters granted, tQ the constituent companies, the statute under which they consolidated, the articles of consolidation, and other facts: and averred that the defend.ant succeeded to the rights of the constituent companies whose charters constituted contracts between them and the state, which could not be impaired by any law enacted by the state; that by these charters the had the right to establish such rates of toll for carrying passengers and property on its road between Galesburg and Chicago, as itmigpt determine from time to time by its by-laws; that the rates of toll charged in the declaration to have been demanded and receivedhy defendant had been previously fixed by by-laws adopted by the board of directors as the regular rate; and that the legislature had no power to ellact the statute under which the railroad and warehouse commissioners assumed the right to establish the rates against the defendant, as .alleged in tqe declaration. On March 5, 1883, the defendant filed its petition for the removal of the suit to this court, and the 'state court entered an order allowing the removal. Besides the usual averments, the petition alleged that the defendant had a defense arisiIlg under the constitution v.43Jf.no.6-26
of the United States, viz., that the cause of action was based upon the statute of Which violatedseotion W,'nrt. of the United States by impairing the contract between the state and the defendant, grbwin/tou ofl'the dhart\Hs-'krn.Dted'tb \the\cimstituent CODlpanies, to whichcharters reference was made. A pf the
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in'tllis when the plaintiff again moved to remand on the grotttitl't'HUlli' sustaining the demurrer the court had decided, ad plea, 'q)lesIn overruling the first motion to rertHirld;tbe that on the face of the record a federal questionwas for decision:} -Itdirl,not then'dedida thattlie defJndant wis endtled to the 100munit'V',aasollood l(}j i of1:he fedetlli.'ooftstitutiori'. and, unHi p'l'esettted' and ,d,eeidedl thejarisdietion: :WIle "CIMI' j! i; Thete is di1fd:ell.ce, between a motion"t0.!temandbaMd!lupon the petition for removal,' and a mot1ooto 'after the court 'has determined; upan :ftill presentation .of'the 'faclii" as it did, in tlIJis'case, that,' coD:"stitution Ol'l'lll\Vsof the United States as a,defense is O'iifdonde'd. In dispOtrlng of/the. demurrer, the' court decided' lthat t'hestlite: statute' passed .subsequent to the' granting' Of the charters to ,th(;! constitUent companies did not secure; to them to fare and freigbtifree froni' interference; and that the state statute did ,not violateIth'ecconlltitution;of the t1ri ited States. ' It1d'oeS notfolldW that, 'this ,court bad jurisdiction of the Buit from the stale Jcourt, that jurisdiction ma.y:beretained;after the sole federal question ,has beeu, against thtl" A decis'ion 'Gvemilinga motiQn'to of :jurisdiction.: ' After such a In0tion' 'hluPbeenovel:rtiled, the party W40 :nla<.!e it may plead to th'e'jurisdictioni:ofthecourtjand if,:onissue joined,the plea: is sustainMveither 'that both plaintiff and .defendant ,ar& dtizens of the: e·state; " (the Jurisdiction d e ,u1>j)D citizenship,) or upon the ground that" the'righta.sserted undetthe ,constitutionol laws ofthe·United States ia:vvithdut foUbdatiol1,' thifcase 'will herema'ndM.' Thefiicts' upon *hichthe'defendantasserted'a' right the '6f'tneUbitedStatesap'peared in the the aetioriof the'(1oun 6h thedetillllrer left i no otbeJo question for, decision.·' Sectiqi" 6 'o{the'b.s:t March 3, 1875" ,(18Stat Large, ':: '" "That If; jb,: any'suit commenced "'in,'ll or. renioved from a :state court to' 8'fcirc'uit court {)f the United it shall ": ; appeal" -to "i the .. , o
faction courJi. a.t any sucb suit bas heenbrougbt.or re'moved thereto, such dol's not re;i.lii InvQlye a dispute or coritroversy '\Vithi n the: of cot1tt, ... ... ... tbesaid coafl shall proceed nO' ftlrther therein, but shliUd,is-' miss said suit, or remand itt6thecourt from wbich it was removed." It appearing from the judgment sustaining the demurrer to the special plea tht\t the suit "does not reany and .f!ilbstantially involve a controversy properly within the ju'risdiction of the circuit court," the motioJl to remand is sustained." ,
GLENN fl· .NOONAN et· al. , et ale
SAltic 11. SAME 11.
LoCKWOOD tit al. DIMMOCK dal.·
SAME". LucAs 2(),
(OircnU Court, E. D. Missouri., E. D. September EQUITT.-PRAOTICB-REBEARJNG.
1800.) . .
Under equity rule 8l!; in a non-appealable t"ase. a rehearing cannot be &fUr tHe mpse of the term suctoeeding that at which the final decree was ente'red, altbonghthe'petition is filed a.t tbe same term atwbich,tbe,decree was rendered.,
In' Motion for a rehearing. .For former report, see 23 Fed. Rep. 695. Thcrma8 K. Skillker, for comp1ninant. Th08. C. Pletdter, for defendants Noonan et nl. Noble &: Orri('k, for defendants Lockwood et ale W. H. Clopton anti Lee kEllis, for uefentlUllts Lucas etal. John lV. Dryden, .for Diinn10ck et al. . THAYER, J. These cases alike. The record shows that at tho September term, 1886, of this court, and at the March term, 1887, detiled and sustained; that the complainmurrers to the several iJills ant dedi.ned to ph'ad further, whereupon a final decree was rendered -()frecord in each case, dismissing the bill, and at Snme term petitions for rehearing were filed in the several suits. In some of the cases, the record recites that the petition lor a rehmrinp; "was tinued until the next term," and in. others,. thatthecootii1URnC6 ..was "until the further order of the courL" No action has since been hlken on the several ptltilions for rehenring, for the reason that, until fEl<:enUy, a cause has been pending in the United States snpreme court involving the sa.mequestion raised by the dernurrtlrs, and the petitions, :by tacit cQpsent,.asit have not been called up. Mallewuts, neither has upon a hearing of the petitiuns. stipulntiqll of record" however, or on. file, signedhy the parthatacti<>o on the petitions might be deferred, which tiell, by anyp()ssiLility c:uiope.rateas an estoppel, lind thus precluclethe deas they now do, the. court has n9 power at tPil:!:time;to the stlverul .. By .the, Qf
all